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Although rules vary by state, some commonalities exist with regard to the validity of a will. For a will to be valid initially, there are three requirements;
- Age: The testator must be of legal age in his home state at the time the will is drafted, which is usually at least 18 years of age. Reaching the age of adulthood subsequent to creation of a will does not satisfy this requirement.
- Mental capacity: This requirement carries a low standard. Lack of mental capacity does not arise out of illiteracy, eccentricity, general craziness, or even confinement to a mental hospital. Three conditions must be met: a) testator understands the nature and extent of the property owned; b) testator understands the people who are those to whom property might be left, or to whom property might not be left; and c) testator understands the significance of making a will.
- Current testamentary intent: Language in the will must affirmatively establish the current intent of the testator to hand down a specific parcel of property to a named heir after death, and cannot reflect the future intent to assign property. It is important to note that the testator to be validly willed to an heir need not currently own property. So long as the property mentioned in the will is gained prior to the death of the testator and owned at time of death, that portion of the will assigning that property is valid. Also, conditional language in a portion of a will shall not cause invalidation, and so long as conditions expressed in the will are met, that portion of the will shall be valid.
Even if the above three conditions are met, a will, in whole or in part, might be invalidated by other overpowering forces influencing the terms of the document. Also, wills made validly and subsequently shall invalidate and replace the prior document.
Undue influence supplants testamentary intent of the testator with the desires of the person exerting the undue influence. In other words, coercion is used to manipulate the terms of the will contrary to the desires of the testator. A testator being elderly, in poor health, and isolated from others but readily accessible to the person exerting influence can allow undue influence. Sudden changes in distribution or patterns of distribution that seem inequitable or contrary to longstanding intentions of the testator can be indicators of undue influence.
This overpowering and invalidating force has the same effect as undue influence, but lies and deceit are used instead of coercion. A mere mistake on the part of the testator or one assisting the creation of the will does not constitute fraud. Other circumstances can also invalidate a will.
Contact an Experienced Legal Help
If the will of a loved one seems to convey terms contrary to the nature of that person, protect the property at stake and learn your rights. Contact the experienced estate lawyers at the Kamerow Law Firm, PLLC at 703-370-8088 for a free and confidential consultation and to learn how we can be of assistance during this time.